NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 22-2445, 22-2446, 22-2902, 22-2958, and 22-2959

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PACE-O-MATIC, INC.

 

v.

ECKERT, SEAMANS CHERIN & MELLOTT, LLC; MARK S. STEWART; KEVIN 

M. SKJOLDAL

Appellants in No. 22-2958

*HAWKE MCKEON & SNISCAK, LLP,

Appellant in Nos. 22-2445 and 22-2902

*GREENWOOD GAMING AND ENTERTAINMENT, INC.,

Appellant in Nos. 22-2446 and 22-2959 

*(Pursuant to Rule 12(a), Fed. R. App. P.)

_____________________________________

On Appeal from the United States District Court for the 

Middle District of Pennsylvania

(District Court No. 1-20-cv-00292)

District Judge: Honorable Jennifer P. Wilson

_____________________________________

Argued

September 20, 2023

(Filed November 13, 2023)

Before: RESTREPO, McKEE, RENDELL, Circuit Judges.
2

_________

O P I N I O N**

_________

Peter C. Buckley

Abraham C. Reich

Robert S. Tintner [ARGUED]

Fox Rothschild

2000 Market Street

20th Floor

Philadelphia, PA 19103

Counsel for Appellants Eckert, Seamans Cherin & Mellott, LLC, Mark S. Stewart, and 

Kevin M. Skjoldal

Melissa A. Chapaska

Dennis Whitaker [ARGUED]

Hawke McKeon & Sniscak

100 N Tenth Street

P.O. Box 1778

Harrisburg, PA 17101

Counsel for Appellant Hawke McKeon & Sniscak, LLP

George A. Bibikos [ARGUED]

#6330

5901 Jonestown Road

Harrisburg, PA 17112

Counsel for Appellant Greenwood Gaming and Entertainment, Inc.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

Michael Martinich-Sauter [ARGUED]

Jeffrey B. Jensen

Michael Nolan

Spencer Tolson

Husch Blackwell

8001 Forsyth Boulevard

Suite 1500

St. Louis, MO 63105

Counsel for Appellee Pace-O-Matic, Inc.

RENDELL, Circuit Judge.

Eckert Seamans Cherin & Mellott, LLC (“Eckert”), Hawke McKeon & Sniscak, LLP 

(“HMS”), and Greenwood Gaming and Entertainment, Inc., d/b/a Parx Casino (“Parx”) appeal 

from the District Court’s order requiring disclosure of allegedly privileged material under the 

doctrine of judicial estoppel. Because the District Court erred in implementing the standard for 

application of judicial estoppel under our caselaw, we will vacate the order and remand.

I

1

Pace-O-Matic, Inc. (“POM”) develops, produces, and licenses electronic games 

sold, as relevant here, in Pennsylvania and Virginia. In 2016, Eckert began representing 

POM solely in Virginia regarding certain regulatory matters. At that time, Eckert also

represented Parx, POM’s market competitor, in Pennsylvania. 

In 2018, POM, through other counsel, filed two lawsuits in the Commonwealth 

Court of Pennsylvania (the “Commonwealth Court Cases”) against state agencies,

1 Because we write only for the parties, we will recite only the facts necessary to our decision.
4

challenging the seizure of some of its games in Pennsylvania.2 Parx, represented by counsel 

of record HMS and Ballard Spahr, LLP, filed amicus briefs in opposition to POM’s 

position and moved to intervene in the action. 

In January 2020, POM learned that Eckert was involved in drafting Parx’s filings 

in the Commonwealth Court Cases. POM requested that Eckert withdraw from 

representing Parx in the Commonwealth Court Cases, but Eckert instead withdrew from 

its representation of POM in Virginia. 

In February 2020, POM brought the instant action against Eckert in federal court, 

alleging a breach of fiduciary duties. POM served interrogatories and requests for 

document production on Eckert and non-party subpoenas on Parx and HMS seeking 

communications that Eckert had with Parx and HMS in the Commonwealth Court Cases. 

Eckert, Parx, and HMS objected, asserting attorney–client and work-product privilege. 

POM moved to compel production; Eckert, Parx, and HMS moved for a protective order. 

The Magistrate Judge heard oral argument and conducted an in camera review of the 

documents at issue. The Judge then issued a memorandum and order invoking the doctrine 

of judicial estoppel to preclude Eckert’s assertion of an attorney–client relationship with 

Parx. The Magistrate Judge concluded that Eckert, HMS, and Parx had each, explicitly or 

implicitly, mischaracterized Eckert’s role in the Commonwealth Court Cases by asserting 

that Eckert did not represent a party adverse to POM in the Commonwealth Court Cases.

2 See POM of Pa., LLC v. Pa. State Police, Bureau of Liquor Control Enforcement, No. 

503 MD 2018 (Pa. Commw. Ct.); POM of Pa., LLC v. Commonwealth of Pa., Dep’t of 

Revenue, No. 418 MD 2018 (Pa. Commw. Ct.).
5

Eckert, HMS, and Parx appealed to the District Court, which affirmed the 

Magistrate Judge’s memorandum and order on July 5, 2022 (the “July 5 Order”) and 

ordered the appellants to turn over the allegedly privileged documents and 

communications. Eckert, HMS, and Parx filed motions for reconsideration and 

permission to take an interlocutory appeal under § 1292(b). The District Court denied the 

motions for reconsideration but granted permission for the interlocutory appeal to decide 

whether judicial estoppel may be applied as an exception to or waiver of the attorney–

client privilege of a non-party for interlocutory appeal.3 The appellants timely filed 

petitions for interlocutory review of the July 5 Order under § 1292(b). A motions panel of 

this court granted the petition, and we consolidated the appeals. 

II4

The appellants urge, first, that judicial estoppel cannot be applied as a waiver of,

or exception to, attorney–client privilege held by a non-party and, second, that the 

District Court abused its discretion in applying the doctrine of judicial estoppel to the 

facts before it. Because we agree that the District Court misapplied the law, we need not 

3 The District Court stayed the order requiring production of discovery materials pending 

this appeal.

4 The District Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a), and 

we have appellate jurisdiction under 28 U.S.C. § 1292(b). The District Court determined 

that the July 5 Order “(1) involve[s] a ‘controlling question of law,’ (2) offer[s] 

‘substantial ground for difference of opinion’ as to its correctness, and (3) if appealed 

immediately ‘materially advance[s] the ultimate termination of the litigation.’” Katz v. 

Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (quoting 28 U.S.C. § 1292(b)). 

We will exercise our discretion in permitting this appeal to be taken from the July 5 

Order, 29 U.S.C. § 1292(b), and do not address the appellants’ or appellee’s arguments 

regarding the Perlman doctrine or the collateral order doctrine.
6

address the first argument.

5 We review the District Court order invoking judicial estoppel 

“only for abuse of discretion,” inquiring whether its “ruling is founded on an error of law 

or a misapplication of law to the facts.” Montrose Med. Grp. Participating Sav. Plan v. 

Bulger, 243 F.3d 773, 780 (3d Cir. 2001) (internal quotation marks omitted).

The concept of judicial estoppel stems from the courts’ intrinsic authority to 

prevent parties from “playing fast and loose with the courts” by asserting inconsistent 

positions to gain an unfair advantage. Scarano v. Cent. R. Co. of N.J., 203 F.2d 510, 513 

(3d Cir. 1953). In order to apply judicial estoppel, a district court must satisfy itself that:

(1) the party to be estopped is asserting a position that is irreconcilably 

inconsistent with one he or she asserted [previously]; (2) the party changed 

his or her position in bad faith . . . ; and (3) the use of judicial estoppel is 

tailored to address the affront to the court’s authority or integrity. 

Montrose, 243 F.3d at 777–78. “[J]udicial estoppel is appropriately applied in a narrow 

category of cases because it ‘is an extraordinary remedy that should be employed only 

when a party’s inconsistent behavior would otherwise result in a miscarriage of justice.’” 

Dam Things from Den. v. Russ Berrie & Co., 290 F.3d 548, 559–60 (3d Cir. 2002) 

(quoting Montrose, 243 F.3d at 784).

The District Court reasoned that judicial estoppel was appropriate because the 

appellants had presented fundamentally different positions in bad faith to obstruct

5 Although appellants’ first argument aligns with the question certified by the District 

Court, when we exercise jurisdiction under § 1292(b), we “may address any issue fairly 

included within the certified order because ‘it is the order that is appealable, and not the 

controlling question identified by the district court.’” Yamaha Motor Corp., U.S.A. v. 

Calhoun, 516 U.S. 199, 205 (1996) (quoting 9 J. Moore & B. Ward, Moore’s Federal 

Practice ¶ 110.25[1] (2d ed. 1995)).
7

discovery and no lesser sanction would address the resulting harm. We conclude that the 

requirements for applying judicial estoppel have not been met.

A 

The Magistrate Judge viewed Eckert’s assertion that it did “not represent any party 

adverse to POM in [the Commonwealth Court] litigation” as irreconcilably inconsistent 

with its invocation of the attorney–client privilege to shield its communications with 

Parx. JA 13–14. But Eckert’s counsel explained to the Magistrate Judge that Eckert has 

maintained that it has a longstanding attorney–client relationship with Parx but did not 

appear as counsel of record for Parx in the Commonwealth Court Cases. And Eckert did 

not view itself as representing a party adverse to POM when Parx was not a party in 

either Commonwealth Court Case but only had a motion to intervene pending. The 

Magistrate Judge did not appear to appreciate Eckert’s nuanced view of its role. As we 

read the record, Eckert’s position was perhaps “hyper-technical,” see In re Teleglobe 

Commc’ns Corp., 493 F.3d 345, 378 (3d Cir. 2007), but it was not wholly incompatible 

with its assertion of the attorney–client privilege. Eckert readily conceded that it 

represented Parx in connection with the Commonwealth Court Cases, but Parx was not a 

party and Eckert never entered an appearance in the case.

B

Second, even if there were irreconcilable tension between Eckert’s positions, the 

District Court abused its discretion in finding that Eckert, HMS, and Parx acted in bad 

faith. To satisfy the bad faith requirement, (1) a litigant must behave culpably (2) in a 

way that “assault[s] the dignity or authority of the court.” Montrose, 243 F.3d at 781. In 
8

other words, “judicial estoppel may not be used to punish litigants for how they treat 

other litigants or third parties; its only legitimate purpose is to remedy an affront to the 

court’s integrity.” Id. at 785 (footnote omitted).

Our focus is on whether the appellants’ conduct assaulted the District Court’s 

authority. “[J]udicial estoppel is generally not appropriate where the defending party did 

not convince the District Court to accept its earlier position,” G-I Holdings, Inc. v. 

Reliance Ins. Co., 586 F.3d 247, 262 (3d Cir. 2009), because “[u]nlike the concept of 

equitable estoppel, which focuses on the relationship between the parties, judicial 

estoppel focuses on the relationship between the litigant and the judicial system.” 

Delgrosso v. Spang & Co., 903 F.2d 234, 241 (3d Cir. 1990). Here, no court accepted 

Eckert’s, HMS’s, or Parx’s allegedly inconsistent positions that Eckert was not 

representing an entity adverse to POM in litigation. Absent that clear threat to judicial 

authority, the District Court lacked “an integral factor justifying the application of 

judicial estoppel.” United States v. Pelullo, 399 F.3d 197, 223 (3d Cir. 2005). 

POM urges that judicial estoppel may apply even where no court accepted a

litigant’s prior position. See G-I Holdings, 586 F.3d at 262. But that exception was 

applied in a bankruptcy case, Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. General 

Motors Corp., 337 F.3d 314 (3d Cir. 2003), and is quite limited. There, the Bankruptcy 

Court had not accepted representations in the debtor’s disclosure statement, but the Court 

cited “the reliance placed upon the [debtor’s] disclosure statement by the creditors and 

the court” as justifying the application of judicial estoppel to bar the taking of a later 

inconsistent position. Id. at 320–22 (quoting Oneida Motor Freight, Inc. v. United Jersey 
9

Bank, 848 F.2d 414, 417 (3d Cir. 1988)). Nondisclosure there harmed creditors, 

“undermining the bankruptcy process by weakening their bargaining position.” G-I 

Holdings, 586 F.3d at 262 (discussing Krystal Cadillac, 337 F.3d at 324–25). No such

systemic threat lurks behind the appellants’ positions, so “applying judicial estoppel here 

presents a greater threat to judicial integrity.” Id.

Moreover, in routine litigation, defendants are permitted flexibility in asserting 

positions in early stages of litigation “because a defendant ought to have the opportunity to 

put up the best possible defense in light of all the claims against it.” Id.; see also Fed. R. 

Civ. P. 8(d)(2) (“A party may set out 2 or more statements of a claim or defense 

alternatively or hypothetically . . . .”). Here, there really was no “earlier position” that the 

District Court accepted or that was relied on. It was all part and parcel of the same 

discovery proceeding, so there was no assault on the court’s authority. 

C

Third, the remedy is not sufficiently tailored. Courts should not apply judicial 

estoppel unless (1) “no sanction established by the Federal Rules or a pertinent statute is 

‘up to the task’ of remedying the damage done by a litigant’s malfeasance,” Klein v. Stahl 

GMBH & Co. Maschinefabrik, 185 F.3d 98, 108 (3d Cir. 1999) (quoting Chambers v. 

NASCO, Inc., 501 U.S. 32, 50 (1991)), and (2) “the sanction is ‘tailored to address the 

harm identified,’” Klein, 185 F.3d at 108 (quoting Republic of the Phil. v. Westinghouse 

Elec. Corp., 43 F.3d 65, 73 (3d Cir. 1994)).

The Magistrate Judge concluded that only two alternative sanctions were 

available, both of which were “categorically determinative of the outcome on the merits 
10

of th[e] litigation”: (1) entering default judgment against Eckert or (2) judicially 

estopping Eckert from denying its representation of a party adverse to POM in 

litigation. JA 18 (internal quotation marks omitted). Neither the Magistrate Judge nor 

the District Court appear to have contemplated the use of “Rule- or statute-based 

sanctions” more proportionate to the misconduct alleged, which alone was error.

Montrose, 243 F.3d at 785. The sanction ultimately seized upon by the Magistrate 

Judge was fundamentally inappropriate because it goes to the very heart of the 

underlying suit—the nature of the relationships between Eckert and POM and Eckert 

and Parx. The novel application of judicial estoppel to effectively eviscerate a 

non-party’s privilege after the fact was unwarranted when the Magistrate Judge might 

simply have ruled on the privilege issue on the merits and used more temperate 

sanctions to deter counsel from any future gamesmanship.

6

Finally, the District Court did not tailor the remedy because it focused its analysis 

on the alleged bad faith of Eckert, discussing minimally any malfeasance by HMS or 

Parx. But Parx, as holder of the attorney–client privilege, would suffer the brunt of the 

penalty imposed by the July 5 Order. Cf. id. at 786 (concluding remedy was not tailored 

where non-party plan participants, not plaintiff hospital and savings plan, were harmed 

when district court invoked judicial estoppel to dismiss case). In sum, the District Court 

6 Parties rely on the privilege as essential to open communications with counsel. To have 

it denied after the fact, and with little evidence of the role of Parx, the client, in the 

positions Eckert was taking, gives us serious pause.
11

sought to force a square peg into a round hole by selecting judicial estoppel as an 

appropriate sanction for appellants. That was an abuse of discretion. 

III

On remand, the District Court should consider whether the appellants’ perceived 

misconduct merits sanctions and, if so, whether sanctions available under the Federal 

Rules or pertinent statutes are appropriate. Accordingly, we will vacate the District 

Court’s July 5 Order and remand for further proceedings consistent with this opinion.